the university of north carolina

The University of North CarolinaThe University of North Carolina

Family and Medical

Leave Act

Why did Congress enact the Family and Why did Congress enact the Family and Medical Leave Act?Medical Leave Act?

Number of single-parent households and two-parent households where both parents work is increasing significantly.

Development of children and family unit is important. Lack of employment policies to accommodate working

parents. Inadequate job protection for employees who have serious

health conditions. Roles of men and women in our society where primary

responsibility often falls on women to provide care. Employment standards that apply only to one gender may

create potential for discrimination.

Purpose of the Family andPurpose of the Family and Medical Leave Act Medical Leave Act

The Family and Medical Leave Act of 1993 was enacted by Congress to:

• balance the demands of the workplace with the needs of families;

• promote the stability and economic security of families, and to promote national interests in preserving family integrity;

Purpose of the Family andPurpose of the Family and Medical Leave Act Medical Leave Act

The Family and Medical Leave Act of 1993 (FMLA) was enacted by Congress to:

• minimize the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons; and

• promote the goal of equal employment opportunity for women and men.

FMLAFMLAEmployee/Employer RightsEmployee/Employer Rights

Entitles an employee on FMLA to continue health benefits while on leave as if the employee had continued to work instead of taking the leave.

Generally gives the employee a right to return to the same position or an equivalent position with equivalent pay, benefits and working conditions at the conclusion of the leave.

Gives the employer the right to 30 days advance notice from the employee where practicable.

FMLA EligibilityFMLA Eligibility

Employee appointment is… Employee has…

Permanent full-time, probationary, trainee, or time-limited

12 months total service with the state

Been in pay status at least 1,040 hours during the previous 12-months.

Permanent part-time (half-time or more), probationary, trainee, or time-limited

Temporary, intermittent, or

part-time (less than half-time) Note: This leave shall be without pay.

12 months service and been in pay status at least 1,250 hours during the previous 12 months.

FMLAFMLAAmount of Leave EntitlementAmount of Leave Entitlement

The FMLA allows covered employees to take job-protected, unpaid leave, or substitute appropriate paid leave if the employee has earned or accrued it, for up to a total of 12 workweeks in any 12 months.

FMLAFMLA12-Month Period Defined12-Month Period Defined

The calendar year Any fixed 12-month “leave year” The 12 month period measured forward from the date

any employee’s family and medical leave begins A “rolling” 12-month period measured backward

from the date an employee uses any family and medical leave

Note: A university may choose any one of these alternatives provided it is applied consistently and uniformly to all employees. Employees must be given 60 days notice of any change and must not lose any benefits because of a transition.

Qualifying ReasonsQualifying Reasons

1. Birth of a child provided the leave is taken within a 12-month period following birth. (Note: An expectant mother may also take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work, or requires a reduced work schedule.)

Qualifying Reasons (cont.)Qualifying Reasons (cont.)

2. Placement of a child with the employee for adoption or foster care, provided the leave is taken within a 12-month period following placement. (Note: FMLA leave must also be granted before the actual placement/adoption if an absence from work is required for the placement/adoption/ foster care to proceed.)

Qualifying Reasons (cont.)Qualifying Reasons (cont.)

3. Serious health condition of employee’s child, spouse, or parent, that needs the employee’s care, or

4. Serious health condition of the employee that prevents the employee from performing one or more essential functions of his or her job.

Spouse Same Employer RuleSpouse Same Employer Rule

If the spouse is employed by the same employer, the aggregate number of workweeks of leave to which both may be entitled may be limited to 12 workweeks during any 12-month period if leave is taken for 1, 2, or 3 above.

FMLA DefinitionFMLA DefinitionEssential FunctionsEssential Functions

An employee is “unable to perform the functions of the position” where the health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee’s position within the meaning of the Americans with Disabilities Act. An employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.

FMLA DefinitionFMLA DefinitionCare Needed for a Family MemberCare Needed for a Family Member

Medical certification provision that an employee is “needed to care for” a family member encompasses both physical and psychological care, e.g., family member is unable to care for his/her own basic medical, hygienic, or nutritional needs or safety, or unable to transport himself/herself to a doctor. Also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.

FMLA DefinitionFMLA DefinitionCare Needed for a Family Member (cont.)Care Needed for a Family Member (cont.)

Situations where the employee may be needed to fill in for others who are caring for the family member or to make arrangements for changes in care, such as transfer to a nursing home.

An employee’s intermittent leave or a reduced leave schedule necessary to care for a family member includes not only a situation where the family member’s condition itself is intermittent, but where the employee is only needed intermittently, e.g., care may be normally available, or care responsibilities are shared with another family member or a third party.

FMLAFMLAType of LeaveType of Leave

Leave can be continuous, intermittent or reduced time (part-time schedule).

There is no minimum limit on the amount of leave taken intermittently.

Reduced leave is a reduction in number of hours worked per workday or workweek.

FMLAFMLAIntermittent or Reduced Work Schedule Intermittent or Reduced Work Schedule An intermittent work schedule is permitted in which

an employee works on an irregular basis and is taking leave in separate blocks of time, rather than for one continuous period of time, usually to accommodate some form of regularly scheduled medical treatment.

Only the actual time taken as leave may be counted toward the 12 weeks of leave, e.g., if an employee who normally works 40 hours each week is on a reduced work schedule of 20 hours per week, FMLA leave may continue for up to 24 calendar weeks.

FMLAFMLAIntermittent Work ScheduleIntermittent Work Schedule

Employee may take leave intermittently or on a reduced schedule to care for the employee’s child, spouse, or parent who has a serious health condition, or because the employee has a serious health condition.

If leave is for child birth or for adoption/foster care, the university must agree to intermittent leave or a reduced work schedule.

There is no minimum limit on the amount of leave taken intermittently but an employer can limit these increments to the shortest period of time permitted by its accounting systems for use of leave.

FMLAFMLAWhat Counts Toward the 12 Weeks?What Counts Toward the 12 Weeks?

Paid or Unpaid Leave: All approved periods of paid or unpaid leave count towards the 12 workweeks to which the employee is entitled including leave without pay while drawing short-term disability benefits and leave taken under the Voluntary Shared Leave Policy.

Workers’ Compensation Leave: If drawing temporary total disability, the time away from work is not considered as a part of the FMLA 12-week entitlement.

Compensatory Leave: Cannot require an employee to use compensatory time for unpaid FMLA leave.

FMLA DefinitionsFMLA Definitions

Parent: A biological or adoptive parent or an individual who stands/stood in loco parentis (a person who is in the position or place of a parent) to an employee when the employee was a child.

Spouse: A husband or wife recognized by the State of North Carolina.

FMLA Definitions (cont.)FMLA Definitions (cont.) Child: A son or daughter who is under 18 years of age, or

is 18 years of age or older and incapable of self-care because of a mental or physical disability and who is:

- a biological child,- an adopted child,- a foster child (a child for whom the employee performs the

duties of a parent as if it were the employee’s child),- a step-child (a child of the employee’s spouse from a

former marriage),- a legal ward (a minor child placed by the court under the care

of a guardian), or- a child of an employee standing in loco parentis.

FMLA Definitions (cont.)FMLA Definitions (cont.)

Incapable of Self-Care: Individual requires active assistance or supervision to provide daily self-care in several of the “activities of daily living” (ADLs) or “instrumental activities of daily living” (IADLs): – ADL: Includes adaptive activities such as caring

appropriately for one’s grooming and hygiene, bathing, dressing and eating.

– IADL: Includes cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.

FMLA Definitions (cont.)FMLA Definitions (cont.)

Physical or Mental Disability: A physical or mental impairment that substantially limits one or more of the major life activities of an individual.

In Loco Parentis: Include those with day-to-day responsibilities to care for and financially support a child or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

FMLA DefinitionsFMLA DefinitionsSerious Health ConditionSerious Health Condition

An illness, injury, impairment, or physical or mental condition that involves:

Inpatient Care Continuing treatment

by a health care provider

FMLA DefinitionsFMLA DefinitionsInpatient CareInpatient Care

Inpatient Care (i.e., an overnight stay) in a hospital, hospice or residential medical facility, including any period of incapacity (defined to mean inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment for or recovery from), or any subsequent treatment in connection with such inpatient care.


1. A period of incapacity of more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition that also involves:

– treatment two or more times by a health care provider, by a nurse or physician’s assistant under the direct supervision of a health care provider, or a provider of health care services (e.g., physical therapist) under orders of, or on referral by a health care provider, or

– treatment on at least one occasion resulting in a regime of continuing treatment under the supervision of the health care provider


2. Any period of incapacity due to pregnancy or for prenatal care, even when the employee or family member does not receive treatment from a health care provider during the absence and even if the absence does not last more than three days (prenatal examinations, severe morning sickness)


3. Any period of incapacity or treatment due to a “chronic serious health condition,” even when the employee or family member does not receive treatment from a health care provider during the absence and even if the absence does not last more than three days, which is defined as one:- requiring periodic visits of treatment by a health care provider, or by a nurse or physician’s assistant under the direct supervision of a health care provider,- continuing over an extended period of time (including recurring

episodes of a single underlying condition), and- which may cause episodic rather than continuing period(s) of

incapacity (e.g., asthma, diabetes, epilepsy, etc.)


4. Incapacity for a permanent or long-term condition for which treatment may not be effective (Alzheimer’s, a severe stroke or terminal stages of a disease)

5. Any absences for multiple treatments for restorative surgery or a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment (chemotherapy, radiation, dialysis, etc.)

FMLA DefinitionsFMLA DefinitionsExcluded ConditionsExcluded Conditions

Routine physical exams, eye exams, or dental exams. Conditions for cosmetic treatments unless inpatient

hospital care is required or unless complications develop, or due to an injury.

Treatment requiring only over-the-counter medications, bed rest, that can be initiated without a visit to a health care provider.

Common ailments including the common cold, the flu , ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontic care and periodontal treatment unless complications arise.

FMLAFMLA Health Care ProviderHealth Care Provider

A doctor of medicine or osteopathy who is authorized to practice medicine or surgery in the State of North Carolina, or any other person determined by statute, credential or licensure to be capable of providing health care services which include:

FMLAFMLAHealth Care ProvidersHealth Care Providers

Podiatrists Optometrists Dentists Clinical Psychologists Clinical Social Workers Nurse Practitioner Nurse Midwife Chiropractors (limited

treatment)

Providers from whom employer or group health plans will accept certification of a serious health condition to substantiate a claim for benefits

Foreign health care providers in above stated areas who are authorized to practice in that country and who are performing within the scope of the laws

Christian Science practitioners listed with First Church of Christ Scientist in Boston, MA.

FMLA Notification ProvisionsFMLA Notification ProvisionsUniversity ResponsibilityUniversity Responsibility

Must post FMLA provisions Must include FMLA provisions in all written

publications, such as handbooks and other summary plan descriptions.

Must provide employee with written notice about specific expectations and obligations of the employee and consequences if the employee fails to meet those obligations each time employee provides notice of the need to take family and medical leave.

FMLA Notice of EligibilityFMLA Notice of EligibilityUniversity ResponsibilityUniversity Responsibility

University must determine if an employee is eligible for family and medical leave.

If an employee who is not eligible for FMLA notifies the employer of the need for such leave, the employer must confirm the eligibility effective date or advise the employee when the requirement will be met. If the university fails to advise the employee, the employee will be deemed eligible and not denied the leave.

If employee does not give notice of the need for leave more than two workdays before beginning leave, the employee will be deemed eligible unless notified of ineligibility within two workdays of the date the notice is received.

FMLA Designation of LeaveFMLA Designation of LeaveUniversity ResponsibilityUniversity Responsibility

It is the responsibility of the university to: Determine that leave requested is for a FMLA qualifying

reason Designate leave, whether paid or unpaid, as FMLA leave

even when an employee would rather not use the FMLA entitlement

Note: Designating FMLA leave is based on the qualifying reason, not the employee’s election or reluctance to use FMLA leave or to use all, some or none of the accrued leave.

FMLA Designation of Paid LeaveFMLA Designation of Paid LeaveUniversity ResponsibilityUniversity Responsibility

When an employee gives notice of the need for FMLA leave and is using paid leave, whether required or optional, the university shall designate whether it qualifies for FMLA leave before the leave begins.

The University can require the employee to provide whatever information is necessary to make a determination.

All leave taken can be designated as FMLA leave; if sufficient information was available but notice not given, the leave cannot be designated as FMLA leave retroactively.

FMLA Designation of Paid LeaveFMLA Designation of Paid LeaveUniversity Responsibility (cont.)University Responsibility (cont.)

When an employee is on paid leave but has not given notice of the need for FMLA leave, after a period of 10 workdays, the university must request the employee provide sufficient information to establish whether the leave is for a FMLA-qualifying reason.

If an absence begins as other than FMLA, and later develops into a FMLA qualifying absence, the entire portion of the leave period that qualifies under FMLA may be counted as FMLA leave.

Once the university has knowledge that leave is being taken for FMLA, the university must notify the employee within two business days unless there are extenuating circumstances.

FMLA Designation of Paid LeaveFMLA Designation of Paid LeaveAfter Return To WorkAfter Return To Work

The university cannot designate leave that has already been taken as FMLA after the employee returns to work except:– If the university doesn’t learn of the reason for the leave

until the employee returns to work, then the university may designate the leave as FMLA leave within two business days of the employee’s return.

– If the university has provisionally designated the leave under FMLA leave and is awaiting receipt from the employee of documentation; upon confirmation designation becomes final.

FMLA FMLA EmployeeEmployee Responsibilities Responsibilities

Reason for Leave Notice Required Birth/Adoption/Foster Care

30 days notice, in writing. If the date of birth or adoption requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable, which means within one or two business days of when the need for leave becomes known to the employee.

Planned Medical Treatment

30 days notice if practicable. Employee must consult with supervisor prior to the request for FMLA.

Medical Emergency Not required to give written notice.

FMLAFMLA Adoption/Foster Care CertificationAdoption/Foster Care Certification

The university may require that a claim for such leave be supported by reasonable proof of adoption or foster care.

FMLAFMLAMedical CertificationMedical Certification

The university may require certification from the health care provider. If the employee is using paid leave, the university cannot require more stringent certification than normally required. If unpaid leave, requirements may be no greater than:

– When leave is foreseeable and 30 days notice has been provided, medical certification should be provided before the leave begins

– If not possible, must provide within time frame requested by the university (which must allow at least 15 calendar days after the university’s request), unless not practicable

– At time university requests certification, it must also advise employee of anticipated consequences of an employee’s failure to provide adequate certification.

FMLAFMLAMedical CertificationMedical Certification

Date condition commenced and duration Diagnosis Regimen and treatment Necessity for hospitalization (if applicable) For employee’s illness, a statement that he/she cannot perform any

work or that he/she cannot perform one or more of the essential functions of his/her position

For family member’s illness, a statement that the employee is needed for care, assistance or psychological comfort; or

For intermittent or reduced-time leave, necessity of such a leave schedule and the medical reasons; necessity (if applicable) of the employee’s providing care, assistance or psychological comfort to the sick family member on this schedule; and expected duration for this particular leave schedule.

Certification ValidityCertification Validity

If an employee submits a complete certification signed by the health care provider, the university may not request additional information; however, a health care provider representing the university may contact the employee’s health care provider with the employee’s permission for the purposes of clarification and authenticity of the medical certification.

Second OpinionSecond Opinion University bears expense including reasonable “out-of-

pocket” travel expenses. University may not require the employee/family member to

travel outside normal commuting distance except in very unusual circumstance.

Pending receipt of the opinion, the employee is provisionally entitled to FMLA leave.

University is permitted to designate the health care provider to furnish the second opinion, but the selected provider may not be utilized or contracted with on a regular basis by the university unless the university is located in an area where access to health care is extremely limited.

Third OpinionThird Opinion

If employee’s and university’s designated health care providers differ, the university may require a third opinion, at the university’s expense.

The third opinion shall be final and binding. Provider must be designated or approved jointly

by the university and employee. University is required to provide the employee

within two business days, a copy of the second and third medical opinions, where applicable, upon request by the employee.

Recertification of Medical Recertification of Medical ConditionsConditions

At the employee’s expense, university may request recertification no more often than every 30 days unless:– extension is requested, – circumstances described by previous certification have

changed significantly, or– the university receives information that casts doubt upon the

employee’s stated reason for the absence.Employee must provide requested information to

university within time frame requested (which must allow at least 15 calendar days after the university’s request) unless not practicable

ReinstatementReinstatement

Generally, the employee shall be reinstated to the same position held when the leave began or one of like pay grade, pay, benefits, and other conditions of employment.

University may require the employee to report at reasonable intervals his/her status and intention to return to work.

University may require the employee to provide certification that he/she is able to return to work.

Benefit ProtectionBenefit Protection

Employee shall be reinstated without loss of benefits accrued when the leave began.

All benefits accrue during any period of paid leave.

No benefits accrue during any period of leave without pay.

Health InsuranceHealth Insurance

University shall maintain coverage for the employee under the State’s group health plan for the duration of leave at the level and under the conditions coverage would have been provided if the employee had continued employment.

Any share of health plan premiums paid by the employee prior to leave must continue to be paid by the employee during the leave period.

University must give advance written notice to employees of the terms for payment of premiums during FMLA leave.

Obligation to maintain health insurance coverage stops if an employee’s premium payment is more than 30 days late. (University must provide at least 15 days notice that coverage will cease.)

Health Insurance (cont.)Health Insurance (cont.)

If employee’s failure to make the premium payments leads to a lapse in coverage, the university must still restore the employee, upon return to work, to the health coverage equivalent that employee would have had if leave had not been taken and premium payments had not been missed without any waiting period or preexisting conditions.

University may recover the premiums if the employee fails to return for a reason other than the continuation, recurrence, or onset of a serious health condition of the employee or the employee’s immediate family member, or other circumstances beyond the employee’s control.

EnforcementEnforcement

Violations can result in any of the following or a combination of any of the following and are enforced by the U.S. Secretary of Labor:– U.S. Department of Labor investigation– Civil liability with the imposition of court cost

and attorney’s fees, or– Administrative action by the U.S. Department

of Labor

Posting RequirementsPosting Requirements

Agencies are required to post and keep posted in conspicuous places, a notice explaining the FMLA provisions and providing information concerning the procedures for filing complaints of violations of the Act with the U.S. Department of Labor, Wage and Hour Division.

Written Notice RequirementsWritten Notice Requirements

Disclosure about leave counting toward 12 week total

Requirement of medical certification (if applicable) and consequences for failing to do so

Whether employer will require or permit the use of paid leave and conditions for this usage

Requirement that employee continue paying only his/her share of health care benefits and arranging for continuing payments

Written Notice Requirements (cont.)Written Notice Requirements (cont.)

Requirement to submit fitness-for-duty report (if applicable) and consequences for failing to do so

Employee’s status as a “key employee” and potential consequences that restoration may be denied

The right to come back to same or equivalent position (unless situation would have changed anyway)

Consequences of employee’s failure to return to work, i.e., employer may recover what it has paid

Any other requirement such as status reports, recertification requirements, etc.

RecordsRecords

University is required to keep records for no less than three years and make them available to the Department of Labor upon request

University must keep records of:– dates FMLA leave is taken, – hours of leave if less than a full day, – copies of employee notices, – documents describing employee benefits, – premium payments of employee benefits and – records of any disputes

RecordsRecords• Records and documents relating to medical certifications,

recertifications or medical histories of employees and their family members, created for purposes of FMLA must be maintained as confidential medical records in separate files/records from the usual personnel files, and if ADA is also applicable, such records must be maintained in conformance with ADA confidentiality requirements except:

– Supervisors/ managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations

– First aid and safety personnel may be informed when appropriate if the employee’s physical or medical condition might require emergency treatment

– Government officials investigating compliance with FMLA (or other pertinent law) shall be provided relevant information upon request.

Family Illness LeaveFamily Illness Leave

Provided for an employee to care for the employee’s child, parent or spouse where that child, parent or spouse has a serious health condition. It is not provided for the employee’s illness.

Extension of the benefits provided under the Family and Medical Leave Policy.

Employee may choose whether to use Family Illness leave or Family and Medical Leave.

Family Illness Leave EligibilityFamily Illness Leave Eligibility

Employee appointment is… Employee has…

Permanent full-time, probationary, trainee, or time-limited

12 months total service with the state

Been in pay status at least 1,040 hours during the previous 12-months.

Permanent part-time (half-time or more), probationary, trainee, or time-limited

Temporary employees are not eligible for Family Illness Leave.

Family Illness LeaveFamily Illness LeaveAmount of LeaveAmount of Leave

The Family Illness Leave allows covered employees to take up to 52 weeks of leave without pay during a 5-year period for the employee’s seriously ill child, spouse, or parent. Although this is leave without pay, an employee may elect to cover some or all of the period of leave by using vacation, sick or voluntary shared leave. Leave earned under the Compensatory Time Off policy may also be used.

Family Illness LeaveFamily Illness LeaveAmount of LeaveAmount of Leave

Example: An employee may take 24 weeks of leave beginning on January 1, 2003. The employee would then be eligible for the balance, 28 weeks, up to January 1, 2008. Then a new 5-year period would begin when the employee commences another leave without pay for this purpose.

Family Illness LeaveFamily Illness LeaveIntermittent Leave or Reduced Work ScheduleIntermittent Leave or Reduced Work Schedule

FIL may be taken all at one time or intermittently. If taken intermittently, it must be in units of one

hour or more. If taken on a reduced work schedule, it cannot

span more than a 52-week period.

Note: If employee is in non-pay status more than 1,040 hours (26 weeks) through use of Family Illness Leave or otherwise, he/she would not qualify for family and medical leave the following year since the required 1,040 hours in pay status within the previous year would not be met.

Family Illness LeaveFamily Illness Leave What Counts Toward the 52 Weeks?What Counts Toward the 52 Weeks?

All periods of leave, with or without pay, used for FIL count towards the 52 workweeks to which the employee is entitled. This includes leave under the Voluntary Shared Leave policy.

Family Illness LeaveFamily Illness LeaveHealth InsuranceHealth Insurance

While on unpaid FIL the employee may continue coverage under the State’s health insurance program by paying the full premium cost (no contribution by University).

Note: If using Family and Medical Leave, the University continues making a contribution.

Family Illness LeaveFamily Illness LeaveUniversity ResponsibilityUniversity Responsibility

Determine whether an employee qualifies for FIL.

The same certification/recertification requirements may be applied that apply to the Family and Medical Leave.

Family Illness LeaveFamily Illness LeaveEmployee ResponsibilityEmployee Responsibility

Employee must: Apply in writing to the supervisor for leave Provide certification or recertification required by

the university Give written notice of intention to return to work

at least 30 days prior to the end of the leave, and Return to duty within or at the end of the time

granted or notify the university immediately when there is a decision not to return

Family Illness LeaveFamily Illness Leave

Reinstatement to the same position or one of like status and pay must be made upon the employee’s return to work unless other arrangements are agreed to in writing in advance of the employee’s return to work.

FIL must be accounted for separate from Family and Medical Leave or any other type of leave without pay.

Upon an employee’s transfer to another State agency, the releasing agency must record on the PD-105 the date FIL was first taken and the amount taken.

Denial of leave requested is a grievable issue and employees may appeal under the State Personnel Act.

the university of north carolina

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unpaid leave

employees family

appropriate paid leave

family unit

family integrity purpose

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eligible medical reasons